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People v. Griffith

OPINION FILED JANUARY 17, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DUANE E. GRIFFITH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. BRUCE R. FAWELL, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

After trial by jury defendant, Duane E. Griffith, was found guilty of reckless homicide and sentenced to a three-year term of probation. He appeals, contending that: (1) he was not proved guilty beyond a reasonable doubt; (2) his oral statement to police was erroneously admitted in evidence; (3) the trial court improperly commented on defendant's failure to testify; (4) prejudicial medical testimony was allowed relating to the cause of the victim's death; (5) the State failed to furnish a mechanic's report in response to a discovery order; and (6) testimony as to defendant's reputation for truth and veracity was erroneously not allowed in evidence.

On September 5, 1975, at about 6:45 p.m. defendant, 17 years old, was driving his Pontiac GTO automobile in a westerly direction on Cayuga Street in Elmhurst, Illinois. His younger sister accompanied him and they were going to pick up their father and then go to a family dinner. Cayuga is a narrow, residential street with which defendant was familiar as he had lived in the area and had often driven on it before. There was a posted speed limit of 25 miles per hour approximately one block west of the scene of the accident on Cayuga Street directed towards traffic approaching the place of the accident from the west. It is apparent that if any other speed limit control existed at the scene of the accident it would be for 30 miles per hour by virtue of the residential character of the area.

Immediately before defendant reached the place of the accident on Cayuga Street there is a sharp, left-ward curve in the street and, as he rounded it, he lost control of his automobile which went into a partial skid and struck the northerly curb of the street. The car passed over the curb, broke off a small tree and progressed further over the parkway and driveways of nearby homes striking and killing Robert Samuels, aged 5 years, who was on his tricycle in the driveway of his home. Investigating officers testified there were approximately 147 feet of tire skid and scuff marks extending from the point of impact with the child back to the east towards the curve across the driveways, parkway and street. Defendant's driving was observed by witnesses as he approached and attempted to negotiate the curve in the street and they testified that his speed was 45 to 50 miles per hour, that the car tires screeched on the curve and that its engine made a loudly pitched, motorized sound.

Defendant was taken to the police station where he was advised of certain Miranda rights and then stated to the officer that he had been angry because his sister had insisted upon changing clothes before leaving home causing them to be late for the meeting with their father and that was why he had been driving fast on Cayuga Street. He said that he felt a thump on the bottom of the car as it approached the jog in the street, lost control of it going into a sideway skid and that, while he saw the child and locked his brakes, he could not avoid hitting him. He also stated he believed he had gone through water in the street and lost traction with wet tires. Investigating officers testified they examined the street and found no bumps or chuckholes at that place which could have caused a thump when passed over by an automobile and that the only patches of water on the street were along the curb half a block east of the curve.

A minister, who was acquainted with defendant's family, testified that defendant's reputation in the community for having careful and prudent driving habits was good and a real estate salesman, who was a neighbor of defendant's, testified in rebuttal that his reputation was that of being a fast, teenage driver.

I

Defendant contends first that he was not proved guilty of reckless homicide beyond a reasonable doubt, arguing there is no evidence that he drove his car in a reckless manner likely to cause death or great bodily harm.

• 1 A person who kills an individual without lawful justification commits involuntary manslaughter if his acts, whether lawful or unlawful, which cause the death are such as are likely to cause death or great bodily harm and he performs them recklessly. If the acts causing the death consist of the driving of a motor vehicle, he may be prosecuted for reckless homicide. (Ill. Rev. Stat. 1973, ch. 38, pars. 9-3(a), 9-3(b).) A person acts recklessly in this regard when he consciously disregards a substantial and unjustifiable risk that his acts are such as are likely to cause death or great bodily harm to some individual and where such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in such situation. (Ill. Rev. Stat. 1973, ch. 38, pars. 4-6, 9-3(a).) Defendant agrees the State proved he was speeding, but argues that no other circumstances are established by the evidence to substantiate recklessness and that speeding alone is insufficient to sustain his conviction, citing People v. Potter (1955), 5 Ill.2d 365, 125 N.E.2d 510, People v. Lynn (1943), 385 Ill. 165, 52 N.E.2d 166, and People v. Rowe (1972), 9 Ill. App.3d 460, 292 N.E.2d 432.

• 2 Defendant was familiar with the street and its residential character. He was aware of the speed limit and the sharp curve. Yet one witness described his car as going "at least 50 miles per hour and never slowing down for the curve until it went over the curb and struck the child." We believe that defendant's conduct as he approached and attempted to negotiate the sharp curve in the narrow residential street at that speed demonstrates circumstances indicating his conscious disregard of a substantial risk likely to cause death or great bodily harm and supports the finding of recklessness made by the jury. Certainly his conduct evidences a gross deviation from the care a reasonable person would exercise in such circumstances. See People v. Prendergast (1968), 95 Ill. App.2d 41, 238 N.E.2d 92; People v. Clark (1970), 130 Ill. App.2d 558, 562-63, 265 N.E.2d 191, 194-95, rev'd on other grounds (1972), 50 Ill.2d 292, 278 N.E.2d 782; People v. Baier (1964), 54 Ill. App.2d 74, 203 N.E.2d 633; People v. Dietschweiler (1974), 21 Ill. App.3d 707, 713, 315 N.E.2d 585, 590.

Defendant called witnesses who testified that the steering mechanisms of the car were worn and would cause play in the steering wheel and a loose and wobbly feel to the automobile which could prevent control of it in some situations. One witness stated it was necessary to turn the steering wheel four to six inches before there was any wheel response. Others testified the car had a strong positraction and, under acceleration on making a turn, the vehicle could become uncontrollable. There were other witnesses called by the State who testified that, to the contrary, they had examined the car and test driven it after the accident and found the steering mechanism to be in satisfactory condition and that the car handled normally without difficulty with the steering, brakes or acceleration.

Defendant's theory that defects in his car, rather than reckless conduct on his part, caused him to lose control and strike the child was presented to the jury for its consideration and was rejected. The jury may have determined from the conflicting evidence that the car was in a satisfactory condition, or, it may also have determined that defendant's operation of the vehicle in the dangerous and defective condition described by some of his witnesses was simply further evidence of his recklessness in rounding the curve at high speed. In these circumstances we cannot say the jury was unjustified in arriving at its finding of recklessness and defendant's guilt of the offense charged beyond a reasonable doubt. See People v. Salazar (1976), 37 Ill. App.3d 800, 807, 347 N.E.2d 86, 92.

II

• 3 Defendant next contends the trial court erred in admitting evidence of his oral statement to a police officer, arguing he had not been advised of his right to have counsel present during questioning as required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. Defendant has waived this claim of error by his failure to move to suppress the statement prior to trial as required by section 114-11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 114-11), although defendant and his retained counsel knew, or should have known, of the claimed error now urged on appeal. Secondly, defendant did not raise this claim during trial where he made only a general objection to the "foundation" for the admission of the statement in evidence. Nor did defendant preserve any error in this regard by specifying it in his written motion for a new trial as is required by section 116-1(c) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1973, ch. 38, par. 116-1(c).) There he made only a general allegation that the trial court erred in permitting testimony relating to a statement made by defendant without the presence of counsel. Defendant raises this contention ...


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